Traditionally, school districts and community college districts have turned their attention to classified layoffs in late April or early May, after the rush of the certificated/academic layoff process is over. However, due to a change in Education Code sections 45117 and 88017, school and community college districts must now give notices no later than May 2nd in order for classified layoffs due to lack of work or lack of funds to be effective July 1, at the start of the new fiscal year.

As we noted in a prior Client News Brief (Number 50, October 2012), Assembly Bill (“AB”) 1908 amended sections 45117 and 88017 to increase the notice period for a classified layoff from 45 to 60 days prior to the effective date of the layoff, when it is due to lack of work or lack of funds. Applying the new notice period to a July 1, 2013 effective date for such layoffs means that layoff notices must be given no later than May 2, 2013. Notices can certainly be given earlier which is generally encouraged, when it is possible.

In the next few weeks, governing boards should be taking action on classified layoffs in order for the layoff to be effective on July 1, 2013. Governing boards can still implement classified layoffs due to lack of work or lack of funds throughout the school year, provided the 60 day advance notice and related requirements are met. Finally, districts should note that classified bargaining units can demand to bargain the effects of such layoffs, and that districts must seek clarification if the unit representative’s description of negotiable effects is unclear.

Please note that AB 1908 did not affect the April 29th deadline for giving notice of a classified layoff of a specially-funded (categorical) position.

If you have any questions regarding the procedures governing classified layoffs, please feel free to contact one of our eight offices located statewide. You can also visit our website, follow us on Facebook, or download our Client News Brief App.

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Last month, in Smith v. City of San Jose (March 19, 2013, No. 1-09-CV-150427), a Santa Clara County Superior Court judge ruled that voicemails, text messages, emails, and other electronic communications relating to City business, sent and received by San Jose City officials from their private electronic devices, are subject to disclosure under the California Public Records Act. (Gov. Code §§ 6250 et seq.)

The overall principle of the Public Records Act is that all records prepared, owned, used, or retained by a public agency that deal with public business are open to public inspection and subject to disclosure, unless a statutory exemption applies. The court concluded that nondisclosure of business communications from the private accounts of both elected officials and agency staff would go against the spirit of the Public Records Act, since personal devices could be used as a tool to subvert the public process and keep public records hidden in personal accounts.

In Smith, environmental activist Ted Smith sued the City of San Jose, the San Jose Redevelopment Agency, and several San Jose City officials (collectively, “the City”) claiming a violation of the Public Records Act. Smith made a written request seeking “[a]ny and all voicemails, emails or text messages sent or received on private electronic devices” used by the Mayor, Councilmembers and their staff, relating to a downtown redevelopment project and other City business. Smith’s request was later bolstered when the City Council unanimously passed a resolution which made “any . . . communications regarding official City business sent or received by the Mayor, Councilmembers or their staffs via personal devices not owned by the City or connected to a City computer network” subject to disclosure under the Public Records Act.

Despite their adopted resolution, the City only disclosed communications sent from and received by electronic devices using City accounts in response to Smith’s Public Records Act request and refused to disclose communications from the officials’ private accounts. The City argued that a communication, even if related to public business, is not a “public record” under the Public Records Act when it is not in the agency’s possession. The City also argued that individual city officers are not included in the Public Records Act’s definition of a “public agency.” In addition, the City cited privacy concerns and contended that disclosure would impose the onerous burden on public agencies of expanding the scope of their searches for public records into the homes and personal devices of their employees and officials.

The court rejected all of the City’s arguments and ruled that communications sent to or received from City officials on their private electronic devices regarding public business are public records regardless of their storage location or format. The court stated that it is unlikely the legislature intended to render documents confidential based on their location, rather than their content. Under the City’s interpretation of the Public Records Act, a public agency could easily shield information from public disclosure simply by storing it on equipment it does not technically own. In regards to the phrase “prepared, owned, used, or retained,” the court explained that a city executes its public duties through its officers and agents. Thus, a communication relating to the conduct of the public’s business that is maintained on the private accounts of City officials falls within the definition of “retained” by the City. Also, regardless of where a record is retained, if it is drafted by a City official, it falls within the plain meaning of “prepared.” Likewise, any record that is “used” by an official to execute a public duty falls within the scope of the Public Records Act, even if it is not “prepared, owned, or retained” by the agency.

The court disagreed with the argument that disclosure of communications from private accounts would constitute an invasion of privacy because “it is doubtful that City officials and agents can claim a reasonable expectation of privacy over their communications concerning the public benefit.” The court pointed out that any personal information that falls within an exception to the Public Records Act can be redacted and withheld. The Public Records Act
acknowledges that there will be some burden in complying with a records request, and the only question is whether the burden is so onerous that it clearly outweighs the public’s interest in disclosure. The City failed to demonstrate in this instance that collecting records from the private accounts of the City officials was unduly burdensome.

Although Smith is a trial court decision and thus not binding in other jurisdictions, or on other parties, it is currently the only California case of which we are aware where a court expressly concluded that public officials must disclose communications concerning the public’s business from their personal electronic devices and email accounts. While a California Court of Appeal previously rejected a newspaper’s lawsuit seeking access to a councilmember’s private email account, it did so due to a technical issue, and stopped short of providing definitive guidance. (See Tracy Press, Inc., v. Superior Court (2008) 164 Cal.App.4th 1290.)

It is important to note that Smith might be limited to its particular facts, which include the City resolution requiring disclosure of communications regarding City business by public officials from personal devices, and the City’s failure to demonstrate a burden of collecting the records from private accounts. The court may have ruled differently had it been confronted with different facts. California courts, however, overwhelmingly favor transparency and disclosure of public information, consistent with a 2004 initiative in which California voters made access to public records a fundamental Constitutional right.

In light of the unsettled nature of the law regarding personal devices and email accounts, it may be prudent for public agencies to implement policies that establish clearly defined and consistent electronic communication practices by its public officials.

If you have any questions regarding the Smith decision or Public Records Act requests in general, or if we can be of assistance in reviewing or developing your policies regarding electronic communications, please feel free to contact one of our eight offices located statewide. You can also visit our website, follow us on Facebook, or download our Client News Brief App.

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

In Ellins v. City of Sierra Madre (Mar. 22, 2013) __ F.3d__ (2013 WL 1180299), the Ninth Circuit Court of Appeals considered whether John Ellins, a police officer for the City of Sierra Madre (City), had sufficiently alleged a First Amendment retaliation claim, where Ellins claimed that that the delay in his salary increase constituted retaliation for his exercise of free speech rights by way of leading an employee union no-confidence vote against the Chief of Police. The Ninth Circuit held that Ellins had established a prima facie case of First Amendment retaliation against the Chief of Police, but not against the City.

Ellins served as President of the Sierra Madre Police Association (SMPA). In 2008, he led the SMPA in a vote of no confidence against the Chief of Police, Marilyn Diaz. Ellins contended that the SMPA initiated the vote of no confidence due to Diaz’s “lack of leadership, wasting of citizens’ tax dollars, hypocrisy, expensive paranoia, and damaging inability to conduct her job.” Ellins led the vote, as it is the SMPA President’s role to lead votes of no confidence. After the vote, SMPA issued two press releases regarding the no-confidence vote and criticizing Diaz’s management style. Diaz read these press releases; she later testified that she believed that Ellins, as SMPA President, was involved in the press releases.

Contemporaneously with the no confidence vote, Ellins was the subject of three internal affairs investigations for prior misconduct. In October 2008, Diaz initiated a criminal investigation by the Los Angeles County District Attorney’s Office into Ellins’ alleged misconduct, although no charges resulted from the investigation. Subsequently, in February 2009, Ellins submitted an application to Diaz for an Advanced Peace Officer Standards and Training (P.O.S.T.) certificate; to receive the certificate, applicants were required to be of good moral character. Ellins would receive a 5% pay raise upon receipt of the certificate. When Diaz did not immediately approve Ellins’ application, Ellins filed suit against the City and Diaz alleging that Diaz’s delay in approving his certificate was in retaliation for Ellins leading the no-confidence vote. Diaz subsequently approved Ellins’ application in hopes that he would forgo his lawsuit.

The lower court granted the Defendants’ motion for summary judgment and held that: Ellins had not established a prima facie claim of First Amendment retaliation; Diaz individually was entitled to qualified immunity; and the City was not liable. Ellins appealed, and the Ninth Circuit reversed the lower court in part.

To prevail on a First Amendment retaliation claim, the plaintiff employee must show that his or her speech was a matter of public concern, the employee spoke as a private citizen and not as a public employee, and the employee’s protected speech was a substantial or motivating factor in the employer’s alleged adverse employment action. On summary judgment, as was the case in this litigation, the employee need only introduce evidence sufficient to create a genuine issue of material fact as to the elements of his or her First Amendment retaliation claim. If the employee makes such a showing, then the government employer must establish that it had an adequate justification for treating the employee differently than other members of the general public and that it would have taken the adverse employment action even in the absence of the employee’s protected speech.

The Ninth Circuit stressed that collective personnel grievances introduced by unions can be matters of public concern. The no confidence vote against Diaz led by Ellins was a collective grievance relating to the police union‘s trepidation about Diaz’s leadership style and other related issues. There was thus sufficient evidence that Ellins’ speech related to a matter of public concern. Next, the Ninth Circuit determined that there was sufficient evidence demonstrating that Ellins’ speech was spoken in his capacity as a private citizen, not as a public employee, because Ellins had no official duty as a police officer to initiate the no-confidence vote or to issue the corresponding press releases. The Court further concluded that when a police officer speaks as a representative of the police union, the police officer is not acting in furtherance of his responsibilities as a public employee. Additionally, the temporary deprivation of Ellins’ salary increase, due to Diaz’s delay in approving Ellins’ application, constituted an adverse employment action. Lastly, the Ninth Circuit determined that Ellins had produced sufficient evidence to show that his protected speech was a substantial motivating factor for the adverse employment action. The Court highlighted the close temporal link between his protected speech and the pay increase delay, as well as Diaz’s statements in opposition to Ellins’ speech.

The Court thus determined that despite Ellins’ disciplinary record and the ongoing investigations by the District Attorney, there was sufficient evidence suggesting that Diaz would have approved Ellins’ application in the absence of the no-confidence vote. The Court also determined that Diaz was not entitled to qualified immunity, as a reasonable official would have known that her conduct violated Ellins’ First Amendment rights. Finally, the Ninth Circuit affirmed the lower court’s holding that the City was not liable for Diaz’s conduct because the City did not have an official policy or custom of retaliatory delay in approving P.O.S.T. certificates. Also, the City’s final policymaker, who approved Diaz’s decision to delay accepting Ellins’ application, was not aware of Diaz’s alleged retaliatory motive. Consistent with these rulings, the Court remanded the case to the lower court for further proceedings against Diaz under Ellins’ First Amendment retaliation claim.

This decision clarifies that expression by an employee relating to a collective grievance brought by a union or association may constitute protected speech and thus underpin a First Amendment retaliation claim. Employers should distinguish such expression, however, from an individual employee’s speech relating to individual personnel grievances, which normally constitutes unprotected speech in the context of First Amendment retaliation claims.

If you have any questions regarding public employee protected speech or First Amendment retaliation claims, please feel free to contact one of our eight offices located statewide. You can also visit our website, follow us on Facebook, or download our Client News Brief App.

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Under Education Code section 44918, temporary teachers who have served two consecutive school years shall receive “first priority” in filling a vacant position in the subsequent school year, if the vacancy occurs at the grade level in which that teacher served during either of the two prior years. The Education Code does not define “first priority” and is silent as to the discretion a district has in granting “first priority” rights to such temporary teachers when filling such vacancies. The recent decision of Henderson v. Newport-Mesa Unified School District (Mar. 13, 2013) __ Cal.App.4th __ (2013 WL 952350) provides some guidance in this area and serves as a reminder that certain temporary certificated employees have a preferential right to fill vacant positions.

Gloria Henderson was hired by the District as a temporary teacher in January of 2008. She was rehired as a temporary teacher for the 2008-2009 school year to teach the same advanced placement classes she was hired to teach the prior year. At the end of the school year, Ms. Henderson was “released” pursuant to Education Code section 44954, but was once again rehired as at temporary teacher for the 2009-2010 school year and was assigned to teach the same advanced placement courses she had taught the previous years. At the end of the 2009-2010 school year, the District again notified Ms. Henderson that she was being released pursuant to Education Code section 44954. The District also sent layoff notices to 242 probationary and permanent certificated teachers along with release notices to its 71 temporary teachers.

Ms. Henderson was among 173 teachers who elected to contest the proposed layoff at a layoff hearing. At the hearing, Ms. Henderson argued she had been improperly classified as a temporary teacher when others with lesser qualifications and less seniority had been classified as probationary or permanent. The Administrative Law Judge ruled in favor of the District on all issues and found the District had good cause for its decision to terminate each of the 173 employees who elected to contest the layoff. Over the course of the summer of 2010, Ms. Henderson applied for three vacant positions for which she was qualified, but she was neither offered a position nor asked to interview for the openings.

Ms. Henderson filed a lawsuit against the District alleging two causes of action: (1) violation of Education Code section 44918 and the requirement she be accorded “first priority” if the District chose to fill any vacant teaching positions in the subjects she had previously taught; and (2) wrongful discrimination against her based on her Chinese heritage.

The trial court dismissed Mr. Henderson’s lawsuit finding that the District had not violated Education Code section 44918 because it had “considered” Ms. Henderson for the vacancies. The trial court also held that section 44918 does not give rise to a private right of action for damages since it was not intended to protect the “financial well-being” of temporary teachers.

Ms. Henderson appealed, challenging the trial court’s decision to dismiss the lawsuit. The court of appeal reversed the trial court’s decision to dismiss
the action.

The appellate court held section 44918 imposes more than a mere obligation that the District consider Ms. Henderson for an available position, since it presumed the District considered everyone who applied. Instead, the court held that the statute obligates the District to give a temporary teacher who fulfills its requirements “a preferential right of reemployment.”

The court analogized “first priority” under section 44918 to Education Code section 44919, which requires that an open coaching position “shall first be made available to teachers presently employed by the district.” The seminal case interpreting section 44919 is California Teachers Assn. v. Governing Bd. of Rialto Unified School District (1997) 14 Cal.4th 627. This case held that section 44919 requires districts to offer existing teachers “some tangible advantage” over non-teachers in the hiring process for coaches. Rialto did not require however, that teachers automatically be given coaching positions regardless of qualifications. Instead, the court held “each school district [retains] the discretion to promulgate and apply heightened qualifications standards for a particular coaching position so as to ensure that level of competence, knowledge, skill, and experience the district preferred.”

As in the Rialto case, the Henderson court determined the use of the word “first” in section 44918 means that Ms. Henderson is entitled to more than an opportunity to compete for the vacant position. The court reasoned that if Ms. Henderson met the qualifications of the vacant position, as determined by the District, then section 44918 imposes a mandatory duty to prefer her for the position over another candidate who does not meet the statutory requirement of prior temporary service. This duty, the court said, restricts what would otherwise be the District’s discretion to choose an outside candidate over Ms. Henderson.

Ms. Henderson will now be allowed to move her case forward to the trial stage on all aspects of her claim, including whether the District violated section 44918 by not providing her “first priority” in hiring, as well as determining if the District discriminated against her on the basis of race. The District could file a petition for reconsideration of this case by the court of appeal and also has the option to file an appeal with the California Supreme Court.

We will keep school districts apprised of further developments in the law on this topic. In the meantime, employers should be mindful to give “first priority” to temporary teachers who apply for vacant positions, and who are qualified for the position and have served at least 75% of two consecutive school years as a temporary teacher in the grade level or subject area of the vacancy.

If you have any questions regarding this case or need assistance with issues related to temporary teachers, please feel free to contact one of our eight offices located statewide. You can also visit our website, follow us on Facebook, or download our Client News Brief App.

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

In Sanchez v. Swissport Inc. (2013) 21 Cal.App.4th 1331, the California Court of Appeal considered a case of first impression regarding the interplay between pregnancy disability leave under the state Pregnancy Disability Leave Law (PDLL) and leave that may be granted to an employee as a reasonable accommodation pursuant to the California Fair Employment and Housing Act (FEHA).[1] Specifically, the Court held that an employee who has exhausted her four-month entitlement to leave under the PDLL may require an employer to consider her request for additional leave as a disability accommodation under FEHA.

In this case, Ana Sanchez was employed by Swissport, Inc. when she became pregnant. One month into the pregnancy, she was diagnosed with a high risk pregnancy and was placed on bed rest. Swissport authorized Ms. Sanchez to take a temporary leave of absence of approximately nineteen weeks, during which she exhausted her accrued vacation time and the four months of PDLL leave. According to Ms. Sanchez, Swissport knew that she needed a leave of absence through her due date, and that she would have returned to work after giving birth. She contended that she would need only minimal work accommodations upon her return. When Ms. Sanchez’s temporary leave expired in her seventh month of pregnancy, Swissport summarily determined that she was unable to perform the essential job functions of her position and abruptly terminated Ms. Sanchez’s employment.

Ms. Sanchez later sued Swissport under various causes of action, including the “failure to accommodate and engage in a timely, good faith interactive process.” The lawsuit alleged that Swissport should have considered her request for an extended leave of absence until she gave birth, which would not have created an undue hardship for Swissport. In its defense, Swissport asserted that FEHA did not obligate it to consider another leave of absence for Ms. Sanchez because it had afforded her with all of the leave mandated by the PDLL, which necessarily satisfied all of its FEHA obligations to accommodate Ms. Sanchez’s disability. Agreeing with Swissport, the trial court dismissed the lawsuit. Ms. Sanchez appealed.

The Court of Appeal overturned the trial court’s decision, concluding that Swissport’s compliance with the PDLL did not equate to its compliance with all other requirements of FEHA. The Court said that, under the PDLL, an employee disabled by pregnancy is entitled to up to four months of disability leave regardless of any hardship to her employer. (Gov. Code § 12945(a).) In addition, FEHA entitles a woman disabled by pregnancy to the protections afforded any other disabled employee, which includes a reasonable accommodation that does not impose an undue hardship to the employer. (Gov. Code § 12940). The Court emphasized that the plain language of the PDLL is clear and provides remedies that “augment, rather than supplant those set forth elsewhere in the FEHA,” and that the four months PDLL leave is an entitlement “in addition to” any other entitlements under the FEHA. Notably, the Court also indicated in a footnote that its holding was further supported by the recently promulgated FEHA Disability Accommodations Regulations.[2]

Under Sanchez v. Swissport, an employer must engage in an ADA/FEHA interactive process after an employee’s statutory PDLL leave has been exhausted in order to determine whether a reasonable accommodation is warranted for the employee’s continuing pregnancy, pregnancy-related conditions, and/or childbirth. Accommodations should be considered on a case-by-case basis and, in some circumstances, may include an extended leave of absence.

If you have any questions regarding the classification of categorical employees, please feel free to contact one of our eight offices located statewide. You can also visit our website, follow us on Facebook, or download our Client News Brief App.

[1] Human Resource professionals should be mindful that a leave of absence may also be considered a reasonable disability accommodation under the federal Americans with Disabilities Act (ADA).

[2] (Cal. Code Regs., tit. 2, § 7291.14 (eff. Dec. 30, 2012) (stating that “[t]he right to take pregnancy disability leave under Government Code section 12945 and these regulations is separate and distinct from the right to take a leave of absence as a form of reasonable accommodation under Government Code section 12940”).)

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

In Borikas v. Alameda Unified School District (March 6, 2013) __ Cal.App.4th __ (2013 WL 820593), the court of appeal granted a rehearing after its December 2012 decision relating to the important issue of whether school district parcel taxes could be structured with tiered rates. Upon rehearing, the court again held that a tiered-rate parcel tax exceeded the school district’s taxing authority and was invalid because the rate structure was not uniform for all taxpayers and parcels.

This case is significant as an increasing number of schools districts have obtained voter approval for parcel tax measures with tiered-rate tax structures, as opposed to flat-rate tax structures. Tiered-rate tax structures generally have different rates for residential and non-residential use parcels, such as residential rates based on the number of housing units on each parcel, and non-residential rates based on the square footage of the parcel. It was previously understood that these tiered-rate structures complied with state law requiring that such taxes generally must apply uniformly to all taxpayers or all property within the school district, under general principals of tax law. Since each type of parcel would pay the same tax, school districts have taken the position that there is adequate uniformity to comply with the statutory requirements under equal protection clause principles. Borikas indicates that, for at least the time being, school districts are not authorized to use a tiered-rate parcel tax because it does not applyuniformly to all parcels in the school district.

In Borikas, plaintiffs challenged Alameda Unified School District’s 2008 voter-approved parcel tax measure (Measure H) that taxed residential parcels at $120 per year, commercial/industrial parcels of less than 2,000 square feet at $120 per year, and commercial/industrial parcels of more than 2,000 square feet at $0.15 per square feet, up to a maximum of $9,500 per year. Measure H also included exemptions for residential parcels owned and occupied by senior citizens or by those receiving Supplemental Security Income, regardless of age.

The trial court in Borikas ruled in favor of the school district, concluding that so long as like parcels are treated in a like way and the division of parcels into different classes has a rational basis, Government Code section 50079’s requirement of uniformity and equal protection of the law is satisfied. The trial court also found that the statute allowed Measure H’s exemptions for some senior and disabled taxpayers. This was the second time that Alameda Unified School District’s tiered-rate structure was upheld in a trial court.

The court of appeal partially reversed the trial court, holding that the tiered-rate parcel tax was invalid, but that Measure H’s exemptions for some senior and disabled taxpayers were expressly allowable under section 50079. The Borikas court read section 50079 literally as requiring that special taxes apply “uniformly” to everyone and all lots within the district, regardless of whether what sits on those lots is radically different from what sits on other lots. The Borikas court reviewed the 1989-1990 legislative history behind the “apply uniformly” language found in section 50079 and concluded that the legislature clearly stated that the language does not give districts authority to create classifications and impose differential
rates; rather, the legislature must provide separate express authority for a school district to do so.

The court acknowledged in passing that school districts and other local governmental entities are more dependent than ever on the revenues from parcel taxes, but any “fix” to the wording of the statute must come from the legislature and not the courts.

Alameda Unified School District is considering appealing this decision to the California Supreme Court and has until approximately April 5 to make that decision. At the same time, we are working with our affected clients, the California School Boards Association (CSBA) and the California Association of School Business Officials (CASBO), in support of AB 59, which would clarify districts’ right to use tiered-rate parcel tax structures going forward and save the parcel tax measures already approved with such structures, including Alameda Unified’s Measure H. We will keep school districts apprised of future developments in this important area. In the meantime, we urge districts that have passed tiered-rate parcel taxes or that are considering new or renewal parcel tax measures to work closely with their legal counsel in determining how to respond to this important development.

If you have any questions about the Borikas decision, or parcel taxes generally, or would like assistance with preparing a parcel tax measure, please feel free to contact one of our eight offices located statewide. You can also visit our website, follow us on Facebook, or download our Client News Brief App.

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

On March 7, 2013, President Obama signed into law the Violence Against Women Reauthorization Act of 2013, which provides sweeping changes to key aspects of college and university disclosure and reporting mandates.

Section 304 of the law, titled “Campus Sexual Violence, Domestic Violence, Dating Violence, and Stalking Education and Prevention,” made significant revisions to the Clery Act provisions of the Higher Education Act of 1965, requiring, among other things:

Reporting of campus crime statistics to include incidents of domestic violence, dating violence, and stalking.

These new reporting requirements include certain crimes motivated by national origin and gender identity, two categories that were absent from the previous law.

An institution’s policies must now explain, with specific details as outlined in the law, the institution’s “programs to prevent domestic violence, dating violence, sexual assault, and stalking” as well as procedures the institution will follow once such an incident has been reported. Specifically, the policies must identify procedures for: (1) victims to follow in reporting incidents; (2) procedures for institutions to follow in investigating an incident; (3) possible sanctions or protective measures that the institution may impose following a final determination of a campus disciplinary proceeding; (4) how the institution will protect the confidentiality of the victim; and (5) written notification to the victim of support resources and of options for accommodations in academic, living, transportation, or working situations.

The procedures followed by an institution must now include a prompt, fair, and impartial investigation and resolution by an official with annual training on how to handle such allegations in a manner that protects the safety of the victims and promotes accountability. The procedures must include a statement of the standard of evidence that will be used in such an investigation. While the Act does not specify a standard, prior guidance from Department of Education suggests that a preponderance of the evidence standard is appropriate.

Finally, the Act clarifies that the institution’s officers or employees must not retaliate, intimidate, threaten, coerce, or otherwise discriminate against any individual for exercising their rights or responsibilities under the Act.

Institutions must update their policies and procedures to include the new requirements by 2014.

It is unclear when the U.S. Department of Education will issue implementation guidance. Institutions still, however, need to begin planning to implement these new requirements, even in the absence of Department guidance. To do so, institutions should start evaluating their existing policies and procedures to determine where changes are needed, considering designation and training of appropriate staff to fulfill the data collection and investigation requirements, and reviewing modifications that may be needed for education and awareness programs.

If you have any questions regarding the Violence Against Women Act or need assistance implementing the Act’s new requirements, please feel free to contact one of our eight offices located statewide. You can also visit our website, follow us on Facebook, or download our Client News Brief App.

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.